Sec 711

If a contract of sale is inoperative under the statute of frauds, but the consideration has been received, the party receiving can be sued on a quantum meruit. The vendee has received the goods, and a proposal and acceptance will be implied. And the same rule applies to other contracts void under the statute of frauds, where an express contract is void because it was not engrossed in a way the statute of frauds prescribes.4 A similar distinction is applicable to an infant's contracts for labor,5 and to champertous contracts.6 It has also been held that where a contract for labor is defective from having been made on Sunday, the employee can recover on a quantum meruit.1

Sec 712

We have already seen8 that, when payment of goods is conditioned on delivery, delivery is a condition When after precedent; and that delivery of successive instal- livery, final delivery of goods is prevented, vendor may sue on indebitatus count.

Implied promise may be raised when express contract is bad under statute of frauds or otherwise.

1 Kennaway V. Treleavan, 5 M. & W. 501. When guarantors and indemnifies are entitled to notice of acceptance, see supra, sec 570.

2 Supra, sec 17; Offord V. Davies, 12 C. B. N. S. 748; Westhead V. Sproson, 6 H. & N. 728; see Phillips V. Foxall, L. R. 7 Q. B. 666.

3 Supra, sec 532, 570 et seq.; Morton V. Burn, 7 A. & E. 19; Wilby V. Elgee, L. R. 10 C. P. 497; see Phillips V. Foxall, L. R. 7 Q. B. 666; Burgess V. Eve, L. R. 13 Eq. 450; Chapin V. Lap-ham, 20 Pick. 467; Gibson V. Rennie, 19 Wend. 389; Ward V. Fryer, 19 Wend. 494; Parmelee V. Thompson, 45 N. Y. 58.

4 Mavor V. Pyne, 3 Bing. 285; Morton V. Tibbett, 15 Q. B. 434; Bayley V. Rimmel, 1 M. & W. 506; Richards V. Allen, 17 Me. 296; Lane V. Shackford, 5 N. H. 133; King V. Welcome, 5 Gray, 41; Comes V. Lamson, 16 Conn. 246 (though see Clark V. Terry, 25 Conn. 395); Allen V. Booker, 2 Stew. 21; Beaman V. Buck, 9 Sm. & M. 207; and other cases cited in 1 Ch. on Cont. 11th Am. ed. 81; and criticism in 2 Ch. on Cont. ut supra, 852.

5 Supra, sec 42, 51.

6 Supra, sec 427.

7 Supra, sec 382; Thomas V. Hatch, 53 Wis. 296.

8 Supra, sec 579, 603.

merits may be conditioned on discharge of duty as to the first.1 It is now to be observed that when a contract has been in part performed, but the completion of the performance has been prevented by the action of one of the parties, then the other party may waive the contract as originally settled, and sue on an indebitatus count for simply the consideration actually received by the other party.2 On a contract, for instance, to sell a thousand tons of coal, if the purchaser prevent the delivery of one-half, but receive the other half, the vendor may maintain at once against the vendee a suit for goods sold and delivered so far as concerns the half received, though by the terms of the contract the sale was to be on a credit as yet unexpired.3 The vendor, in other words, may treat the contract as rescinded, and sue the purchaser as on a new contract for that part of the consideration which has been received, as on a specific assumption of indebtedness. Hence, where a lot of goods were sold on credit on successive deliveries, and after a partial delivery the purchaser refused to receive the remaining instalments, it was held that the vendor might elect to rescind the contract, and sue at once for the goods which had been delivered.4 The same principle applies, as we will presently see, to cases where an employee is prevented from completing his work by a wrongful dismissal by the employer;l and to all cases where the party to be benefited releases the other party from performance.2 On the other hand, a party who undertakes to deliver to another a particular lot of goods, and who abandons the undertaking before completion, subjects himself to having the whole contract rescinded, and the goods, as far as delivered, thrown back on his hands. If, however, the purchaser holds on to the goods, this may be regarded as starting a new contractual relation between them, making the purchaser liable to the vendor in indebitatus assumpsit for the goods actually received.3 Whatever is retained must be paid for, whether the goods retained be in compliance with contract or in excess of contract.4

1 Supra, sec 580.

2 Infra, sec 899; supra, sec 290, 302; Leake, 2d ed. 65; Benj. on Sales, sec 690; Mavor V. Pyne, 3 Bing. 285; Planche V. Colburn, 8 Bing. 14; Inch-bald V. Tea Co., 17 C. B. N. S. 733; Burton V. Pinkerton, L. R. 2 Ex. 340; Williams V. Bank, 2 Pet. 102; Webb V. Stone, 24 N. H. 288; Derby V. Johnson, 21 Vt. 17; Webster V. Coffin, 14 Mass. 196; Moulton V. Trask, 9 Met. 577; Miner V. Bradley, 22 Pick. 457; Star Glass Co. V. Morey, 108 Mass. 570; Miller V. Ward, 2 Conn. 494; Wright V. Barnes, 14 Conn. 518; Dubois V. Canal Co., 4 Wend. 285; Hall V. Rupley, 10 Barr, 231; Sinnott V. Mullin, 82 Penn. St. 333; Jones V.

Mial, 82 N. C. 252; Gorman V. Bellamy, 82 N. C. 496; McMillan V. Mal-ley, 10 Neb. 228. For authorities in Roman law, see supra, sec 603. That the performance of a condition precedent may be waived, see supra, sec 604.

3 Supra, sec 579. As to divisibility, see supra, sec 233, 338, 511; infra, sec 897, 899, 901; Booth V. Tyson, 15 Vt. 515; Updike V. Ten Broeck, 3 Vroom, 105; Shaw V. Badger, 12 S. & R. 275.

4 Bartholomew V. Markwick, 15 C. B. N. S. 711. See generally to the same effect, Wilkins V. Stevens, 8 Vt. 214; McKnight V. Devlin, 52 N. Y. 399; Barnwell V. Kempton, 22 Kan. 314.